SAMI ANNABI, PETITIONER V. UNITED STATES OF AMERICA
No. 87-905
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1-A80) is reported
at 824 F.2d 1294. An earlier opinion of the court of appeals (Pet.
App. A81-A86) is reported at 771 F.2d 670.
JURISDICTION
The judgment of the court of appeals was entered on June 29, 1987.
A petition for rehearing was denied on August 18, 1987 (Pet. App.
A87). On October 13, 1987, Justice Marshall granted an extension of
the time within which to petition for a writ of certiorari to and
including November 16, 1987. The petition for a writ of certiorari
was filed on that date. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the prosecution of petitioner violated the Double
Jeopardy Clause or petitioner's prior agreement pursuant to which
petitioner pleaded guilty to a different charge.
2. Whether the district court erred in admitting the testimony of
an expert witness who interpreted intercepted conversations.
3. Whether the evidence was sufficient to support petitioner's
conviction on the conspiracy count.
4. Whether the district court erred in denying petitioner's motion
to sever his trial from that of his co-defendants.
5. Whether petitioner received effective assistance of counsel.
STATEMENT
Following a jury trial in the United States District Court for the
Southern District of New York, petitioner was convicted of conspiring
to distribute heroin, in violation of 21 U.S.C. 846 (Count 1);
engaging in a continuing criminal enterprise, in violation of 21
U.S.C. 848 (Count 3); five substantive counts involving distribution
of heroin and possession of heroin with intent to distribute it, all
in violation of 21 U.S.C. 841 (Counts 7 and 11-14); two counts of
using a telephone to facilitate a narcotics transaction, in violation
of 21 U.S.C. 843(b) (Counts 22 and 23); and one count of illegally
receiving a firearm, in violation of 18 U.S.C. 922(h) (Count 25). /1/
He was sentenced to concurrent 25-year terms of imprisonment on each
of Counts 1, 3, 7, and 11-14; shorter concurrent terms of
imprisonment on each of Counts 22, 23, and 25; and concurrent
six-year special parole terms on each of Counts 7 and 11-14. He was
also assessed fines totaling $185,000. /2/ The court of appeals
reversed the convictions and sentences on Counts 22 and 23 (thus
reducing the total fine to $145,000) but otherwise affirmed.
1. Petitioner's convictions resulted from a large-scale conspiracy
to import heroin from the Middle East and distribute it in the United
States. The conspiracy originated in mid-1982, when petitioner
obtained financing for a trip to the Middle East to import heroin.
Funds for that trip came from Basil Cannata, an accomplice who
testified for the government at petitioner's trial, and from
petitioner's co-defendant Anthony P. Restaino. On that and subsequent
trips, petitioner imported or arranged to import several kilograms of
heroin. Pet. App. A9.
Petitioner and his brother, Nedam Annabi, were arrested at Kennedy
Airport in New York on November 23, 1982, while smuggling
approximately four kilograms of heroin into the United States. Both
Annabis were then charged with conspiracy to import heroin, in
violation of 21 U.S.C. 963; importation of heroin, in violation of 21
U.S.C. 952(a); and possession of heroin with intent to distribute it,
in violation of 21 U.S.C. 841(a)(1). Petitioner subsequently pleaded
guilty to the importation count. At the same time, in return for
petitioner's agreement to cooperate with the Drug Enforcement
Administration (DEA), the United States Attorney for the Eastern
District of New York agreed to dismiss the remaining two counts
against petitioner and his brother. As a result of that unwritten
agreement and petitioner's subsequent testimony for the government in
three prosecutions in the Southern District of New York, petitioner's
sentence of incarceration on the importation count was reduced to
probation. Pet. App. A9-A10.
Despite his arrest, conviction, and agreement to cooperate with the
government, petitioner continued to traffic in heroin. Following his
arrest and conviction, however, he delegated many operational tasks to
other members of the conspiracy. Shortly after his arrest in 1982,
petitioner sent his wife, Maysoun Annabi, and another woman to Syria
to maintain relations with Abu Hamadah, one of his heroin suppliers
(Tr. 1661-1663). During the trip Maysoun Annabi also met with another
of petitioner's suppliers, co-defendant Hassan Maktabi (Tr.
1873-1874). Petitioner sent his brother-in-law, Hani Fraih, to
deliver cash to Abu Hamadah in Syria (Tr. 836-839, 1455-1462).
Petitioner also enlisted Jordanian military personnel serving as sky
marshals on Royal Jordanian Airlines flights to serve as drug couriers
(Tr. 647-660, 741-743, 4423-4425, 4426). Co-defendants Elias Abdouch,
Antwan Abdouch, and Angeel Abdouch, among others, acted as couriers in
petitioner's operation (Tr. 4002).
Petitioner also had dealings with a third supplier, Sirop Siropian,
who was indicted but never apprehended. Siropian came to petitioner's
home to test a sample of heroin that Siropian had smuggled into the
country (Tr. 758-762). Later, after Siropian was arrested in Boston
on another offense, petitioner helped him obtain a false passport and
leave the country (Tr. 4480-4483).
At some point after entering his guilty plea in the Eastern
District of New York, petitioner himself became actively involved in
the distribution of heroin. He had numerous direct dealings with
co-conspirator Murad Nersesian, including a sale of 1300 grams of
heroin. He worked with co-defendants Peter Pazienza and Dennis Meade
in attempting to find additional customers for the imported heroin.
He made 15 to 20 direct sales of heroin to Jorge Luis Audinot, who
later testified on behalf of the government. Tr. 4178, 4848-4855,
4729. The scheme ended on December 18, 1984, when most of the
defendants, including petitioner, were arrested (Pet. App. A11).
2. After he was indicted in the Southern District of New York,
petitioner moved to dismiss the counts of the indictment charging him
with conspiring to distribute heroin and conducting a continuing
criminal enterprise (Counts 1 and 3). He argued that his indictment
on those counts violated the unwritten plea agreement he had reached
with the United States Attorney for the Eastern District of New York
following his 1982 indictment in that district. After a hearing, the
district court rejected that contention.
On interlocutory appeal, the court of appeals affirmed (Pet. App.
A81-A86). /3/ The court held that a plea agreement binds only the
United States Attorney who enters into that agreement, not the United
States Attorney for a different district. Thus, in the absence of
evidence that "the agreement contemplates a broader restriction," the
court held that petitioner's prosecution in the Southern District of
New York did not violate the plea agreement entered into in the
Eastern District (id. at A85). The court of appeals also rejected
petitioner's claim that his current prosecution violated the Double
Jeopardy Clause. It held that petitioner and his brother were never
put in jeopardy on the 1982 indictment (ibid.). The court added,
however, that petitioner would have no double jeopardy claim even if
he had been put in jeopardy on the earlier charges, because the counts
of the current indictment charging him with conspiracy and engaging in
a continuing criminal enterprise covered conduct extending two years
beyond the period covered by the dismissed charges (ibid.).
3. At trial, the government introduced testimony from three
wiretaps. Two of the wiretaps were placed on the telephones of
individuals who were not defendants in this proceeding, and none of
the defendants was a party to any of the conversations intercepted on
those two wiretaps. The third wiretap was placed on petitioner's
telephone. Pet. App. A18, A20. At the close of its case-in-chief,
the government offered the testimony of DEA Agent John Nolan. Agent
Nolan had 15 years' experience, had participated in 125 wiretap
investigations, and had qualified on three prior occasions as an
expert on the use of codes by narcotics traffickers (id. at A23-A24).
Agent Nolan testified about the terms of speech that narcotics dealers
commonly use in their conversations (Tr. 6362-6365). Nolan also
testified that certain words or phrases in the conversations
intercepted in this case were narcotics-related (Tr. 6375-6513). In
accordance with a ruling of the district court, however, Nolan limited
his testimony on direct examination to the question whether a
conversation was "narcotics-related" as opposed to "heroin-related" or
"cocaine-related," unless some intrinsic evidence, such as the prices
mentioned by the parties to the conversation, provided a basis to
infer that the conversation related to heroin (Pet. App. A24).
On cross-examination, defense counsel asked Nolan to identify
whether specific conversations referred to heroin or cocaine. In
response to those inquiries, Agent Nolan stated his opinion that
certain of the conversations related specifically to heroin. On the
third day of Nolan's testimony, the district court intervened to limit
Nolan's testimony to the question whether a given conversation was
"narcotics-related." In addition, the district judge instructed the
jury that it could consider Nolan's testimony only as it related to
the use and interpretation of codes in narcotics transactions, but not
as it related to what drug was involved. Pet. App. A24-A25.
4. In an extensive opinion, the court of appeals affirmed
petitioner's convictions for conspiracy, continuing criminal
enterprise, distribution and possession with intent to distribute, and
illegal receipt of a firearm (Pet. App. A1-A80). First, the court
rejected petitioner's contention that the evidence was insufficient to
support the jury's finding that he was a party to a single conspiracy
to distribute heroin (id. at A12-A14). The court specifically held
that evidence of acrimony among the conspirators did not demonstrate
that a conspiracy could not have existed (id. at A14).
The court also rejected petitioner's claim that he had been
prejudiced by the district court's refusal to sever his trial from
that of his co-conspirators because the evidence against him was so
strong that it led his co-defendants to assume his guilt before the
jury in order to dissociate themselves from petitioner. Although the
court acknowledged that the district court had a continuing obligation
to grant a motion for severance if prejudice arose during trial, it
held that the record did not show prejudice in petitioner's case.
Pet. App. A14-A18.
The court of appeals further held that the district court had not
erred by admitting evidence gleaned from government wiretaps (Pet.
App. A18-A23). In addition, the court decided that petitioner had not
been denied due process by the trial court's decision to allow Agent
Nolan to testify as an expert witness concerning the meaning of terms
used by petitioner and his co-conspirators in various intercepted
conversations. In this respect, the court of appeals noted that the
district court had carefully limited the testimony of the agent and
had instructed the jury that the agent's expertise was limited to
specific subjects. Id. at A23-A27. The court also reaffirmed its
earlier conclusion that the current prosecution did not violate
petitioner's rights under the Double Jeopardy Clause or his prior plea
agreement (id. at A51-A54). Finally, the court concluded that
petitioner had not been denied the effective assistance of counsel
(id. at A54-A58). The court observed that "(t)he evidence against
(petitioner) was overwhelming" (id. at A57), and it quoted with
approval the district court's observation, outside the presence of the
jury, that "there was 'more than sufficient evidence to convict him
twelve times over'" (id. at A57-A58).
ARGUMENT
1. Petitioner presents two related claims arising out of his 1982
indictment in the Eastern District of New York (Pet. 21-28). First,
he contends that his conviction in the present case violates the
Double Jeopardy Clause. Second, he contends that the government
secured his conviction in this case by violating the plea agreement
between petitioner and the United States Attorney's Office for the
Eastern District of New York. Both arguments are without merit and
were properly rejected by the court below.
a. Petitioner contends that his indictment and conviction for
conspiring to distribute heroin and for engaging in a continuing
criminal enterprise in the present case violate the Double Jeopardy
Clause because the conspiracy that supported those two charges
embraced the scheme that supported the 1982 indictment of petitioner
and his brother. The charges at issue in the 1982 indictment,
however, were different from the charges at issue in this case (see
Pet. App. A83-A84). Thus, no count in the present indictment was
subject to dismissal on res judicata or double jeopardy grounds.
Under the 1982 indictment, petitioner was convicted of one
substantive count of importation of heroin. That conviction, however,
did not give petitioner a valid double jeopardy defense to a charge of
conspiracy. Pinkerton v. United States, 328 U.S. 640, 643-644 (1946).
Nor, given that petitioner continued his illegal activities after
that conviction, did it give him a valid double jeopardy defense to a
charge of operating a continuing criminal enterprise. Garrett v.
United States, 471 U.S. 773, 791-792 (1985). Moreover, the two counts
of the 1982 indictment that were dismissed pursuant to petitioner's
plea agreement charged petitioner with a substantive importation
offense and an importation conspiracy, in violation of 21 U.S.C.
952(a) and 963. He was not charged with either of those offenses in
the later indictment; rather, in the present case petitioner was
charged with, among other things, substantive distribution counts and
a conspiracy to distribute. The dismissal of the importation and
importation conspiracy counts in the 1982 indictment thus had no
effect on any of the charges in the present case.
b. Petitioner also maintains that the government violated his prior
unwritten plea agreement in two distinct ways: by prosecuting him on
Counts 1 and 3 of the present indictment, and by making use of
information that he gave the government pursuant to his cooperation
obligation under that plea agreement.
The government did not violate petitioner's plea agreement by
bringing Counts 1 and 3 of the present indictment. Nothing in the
prior plea agreement barred the government from bringing other charges
against petitioner, particularly since petitioner resumed his illegal
activities after entering the plea agreement in the other case. Only
if the plea agreement gave petitioner a lifetime license to continue
his illegal activities could that agreement be deemed to preclude the
bringing of the charges in this case. And there is no evidence in the
record to show that the United States Attorney made any such
extravagant promise. /4/
Nor did the government make use of immunized communications in any
way that would justify the reversal of petitioner's convictions.
Petitioner's only specific allegation that any such forbidden use
occurred is that the government used his statements to support an
application to place a wiretap on his telephone (Pet. App. A54; Pet.
23-24). Even assuming arguendo that that allegation is both legally
and factually well grounded, petitioner would not be entitled to
relief, for the court of appeals correctly concluded that the wiretap
application was based on enough independent information to establish
probable cause (Pet. App. A21-A22, A54). Petitioner offers nothing
but assertion to challenge this conclusion. There is accordingly no
"immunity" issue in this case that warrants review by this Court.
2. Petitioner also contends (Pet. 28-37) that the district court
improperly admitted conversations intercepted by electronic
surveillance and that the district court erred by allowing Agent Nolan
to testify as an expert regarding the contents of the intercepted
conversations. /5/ More specifically, petitioner contends that Agent
Nolan's testimony "answered the ultimate questions of fact and usurped
the jury's function" (id. at 29). Federal Rule of Evidence 704(a),
however, explicitly provides that "testimony in the form of an opinion
or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact."
Moreover, a district court's determination to admit expert testimony
should stand unless that determination is manifestly erroneous. Salem
v. United States Lines Co., 370 U.S. 31, 35 (1962). The operations of
drug dealers are a proper subject for expert testimony. United States
v. Ginsberg, 758 F.2d 823, 830 (2d Cir. 1985); United States v.
Hajal, 555 F.2d 558, 568 (6th Cir.), cert. denied, 434 U.S. 849
(1977). Furthermore, the courts of appeals have long approved expert
testimony on the use of code words in narcotics transactions. See,
e.g., United States v. Borrone-Iglar, 468 F.2d 419, 421 & n.4 (2d Cir.
1972), cert. denied, 410 U.S. 927 (1973); see also United States v.
Alfonso, 552 F.2d 605, 618 (5th Cir.) (expert testimony interpreting
gambling jargon admissible), cert. denied, 434 U.S. 857 (1977).
Accordingly, the district court did not improperly admit Agent Nolan's
testimony.
3. Petitioner also contends that the evidence fails to support the
jury's conclusion that petitioner was a member of the single
conspiracy charged in Count 1 (Pet. 38-53). In support of this
contention, petitioner enlists the reversal by the court of appeals of
two of his convictions for using a telephone to facilitate a narcotics
transaction; an asserted lack of evidence showing the involvement of
petitioner's brother Nedam Annabi in the conspiracy; the diverse
nationalities of the conspirators; asserted doubts as to the
credibility of some of the government's witnesses; evidence of
disagreements among the conspirators; and the fact that the
conspirators occasionally discussed subjects other than narcotics
transactions during the course of telephone conversations, intercepted
by the government. Taken together, petitioner contends, these
circumstances fatally undercut the jury's verdict on the conspiracy
count.
Petitioner does not contend that the jury was improperly instructed
on the conspiracy count, and it is well established that the question
whether the proof shows a single conspiracy or multiple conspiracies
is a question of fact for a properly instructed jury. See, e.g.,
United States v. Teitler, 802 F.2d 606, 616 (2d Cir. 1986); United
States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986); United States
v. Dickey, 736 F.2d 571, 581 (10th Cir. 1984), cert. denied, 469 U.S.
1188 (1985); United States v. Grunsfeld, 558 F.2d 1231, 1238 (6th
Cir.), cert. denied, 434 U.S. 872 (1977). In this case, the evidence,
when viewed in the light most favorable to the government, amply
supports the jury's conclusion that petitioner was a party to the
single conspiracy charged in the indictment.
Specifically, the government presented evidence showing that
petitioner coordinated the effort to import heroin from the Middle
East and distribute it in this country (see Pet. App. A8, A10). The
evidence established that petitioner, together with Basil Cannata and
Anthony P. Restaino, obtained heroin from three suppliers in the
Middle East, and that each supplier was aware that the others were
also supplying the conspiracy (id. at A10). Petitioner and his core
confederates employed family members, including petitioner's wife
(whose intercepted conversations show a substantial knowledge of and
involvement in the conspiratorial activities), petitioner's
brothers-in-law (Hani Fraih and Ayman S. Rabadi), and Cannata's
girlfriend (Mary "Chicky" D'Agostino), to ferry money and drugs to
suppliers and customers. In addition, the conspirators used a series
of drug couriers, including the Abdouches (Angeel, her ex-husband
Elias, and their son Antwan) to transport the heroin (id. at A10-A11).
The government's evidence further showed that the same individuals
who were involved in obtaining supplies of heroin for petitioner also
were involved in its sale and distribution (Pet. App. A11). For
example, Cannata was involved in numerous drug transactions, including
receiving drugs from the Jordanian military personnel and selling or
attempting to sell drugs to co-conspirator Rafaela "Lydia" Soto,
Saverio Schifano, two individuals identified only as "Frankie" and
"Ivan," and Jorge Audinot. Maysoun Annabi was involved in the sales
to "Frankie" and "Ivan" and Audinot.
The government's evidence also supported the inference that
customers and resuppliers such as Nersesian, Pazienza, and Meade, who
obtained heroin from the core group, were aware that other associates
of the conspirators were also reselling heroin. For example, Meade
assisted many of the conspiracy's sales efforts; Pazienza was aware
of problems petitioner was having collecting payment from other
customers; and Meade and Pazienza were aware of each other's attempts
to find new customers for petitioner.
As the court of appeals held, "(t)he jury reasonably could have
inferred from the evidence that there existed over a period of time a
single conspiracy to import and distribute heroin consisting of core
members who organized and oversaw the importation and distribution,
family assistants, interconnected suppliers in the Middle East,
couriers who actually transported the heroin, and local redistributors
and customers who purchased quantities of heroin" (Pet. App. A13).
Even if petitioner's challenges to the evidence regarding peripheral
aspects of the conspiracy had merit, they would not undermine the
conclusion of the court of appeals as to the sufficiency of the
evidence to support the jury's verdict.
4. Petitioner further contends that the district court erred when
it failed to sever his trial from that of his co-conspirators. More
specifically, he maintains that by making him the "centerpiece" of its
conspiracy prosecution, the government forced petitioner's
co-defendants to assume petitioner's guilt before the jury in order to
distance themselves from the conspiracy (Pet. 54-58). As a result,
petitioner contends, he was subjected to increasing prejudice as the
trial progressed, and the district court therefore should have severed
his trial from that of his co-defendants at some point in the
proceedings.
To prevail in challenging the district court's ruling on a motion
to sever, petitioner must show that the district court abused its
discretion (see, e.g., Opper v. United States, 348 U.S. 84, 95
(1954)), and that as a result he suffered substantial prejudice.
United States v. Lane, 474 U.S. 438, 449 (1986); United States v.
Dounias, 777 F.2d 346, 350 (7th Cir. 1985); United States v. Bari,
750 F.2d 1169, 1177 (2d Cir. 1984), cert. denied, 472 U.S. 1019
(1985); 1 C. Wright, Federal Practice and Procedure Section 227, at
854 & nn.2 & 3 (2d ed. 1982) (collecting cases). In this case,
petitioner has not shown that he suffered any substantial prejudice.
The court of appeals "carefully reviewed" each of the instances
that petitioner cited to support his claim of prejudice and found that
petitioner's argument had no factual support (Pet. App. A17-A18).
First, the court noted that most of the remarks cited by petitioner
were made outside of the presence of the jury (id. at A17). In
addition, the court observed that other allegedly prejudicial remarks
did not mention petitioner (id. at A17-A18). For example, petitioner
contends that counsel for other defendants assumed petitioner's guilt
during their opening statements. Yet, as the court of appeals found,
the statements about which petitioner complains alluded only to the
strength of the evidence showing a conspiracy and not to petitioner's
role in the conspiracy. Similarly, petitioner's argument that he was
prejudiced by the introduction of evidence showing heroin activity by
co-defendants "who were clearly not acting in conspiracy with
petitioner" (Pet. 58) simply restates petitioner's assertion --
rejected by the jury -- that the evidence did not establish a single
conspiracy in this case.
5. Petitioner's final claim is that he did not receive the
effective assistance of counsel. He cites his trial counsel's failure
to make an opening statement, his failure to challenge the
government's translations of intercepted conversations in Arabic, his
failure to obtain full discovery from the government regarding
petitioner's prior plea agreement, and -- more generally -- his
failure to develop petitioner's defenses fully (Pet. 59-61).
Petitioner contends that counsel's alleged errors and omissions
undermined the reliability of the proceeding, and thus failed the
second prong of the test this Court laid down in Strickland v.
Washington, 466 U.S. 668 (1984).
The court of appeals considered those and other asserted instances
of unprofessional conduct by petitioner's trial counsel and concluded
that they fell far short of establishing ineffective assistance of
counsel under the Strickland test (Pet. App. A54-A58). with regard to
counsel's failure to make an opening statement, the court held that
trial counsel's decision to waive opening statement "is ordinarily a
matter of trial tactics" that allows counsel to assess the
government's evidence without committing the defense to a particular
strategy (id. at A55).
With regard to counsel's alleged failure to challenge the
government's translations of the tape-recorded conversations,
petitioner does not state that any of those translations were wrong,
and in fact he does not even directly assert that his counsel failed
to check their accuracy. His only assertion is that no effort "to
carefully examine and translate wiretap recordings appears to have
been made" (Pet. 61). Presumably, if the government's translations
had been inaccurate, petitioner could have advised his counsel of that
fact.
Similarly, with regard to the facts pertaining to petitioner's
prior cooperation with the government, presumably petitioner was in
the best position to know what he did in the course of his
cooperation; it is unclear why his lawyer should be faulted for not
conducting "discovery" on that issue. In any event, as the court of
appeals observed (Pet. App. A57), counsel filed several motions on
petitioner's behalf relating to his cooperation with the government
and "vigorously sought to preclude certain tape recordings" as
violative of petitioner's cooperation agreement with the government.
With regard to the general assertion that counsel did not press
petitioner's defenses with sufficient vigor, petitioner presented
those defenses in the course of his own testimony, but the jury found
them unpersuasive. In light of the overwhelming strength of the
evidence against petitioner, it is not surprising that the jury found
him unconvincing. And in light of the strength of the government's
case, the court of appeals was correct in concluding (Pet. App. A57)
that, even if petitioner's attorney's performance was in some respects
inadequate, it could not have affected the outcome of the trial.
Although petitioner reasserts these same arguments before this
Court, he points to no reason to disturb the entirely unremarkable
holding of the court of appeals. The court below properly applied the
Strickland test. Petitioner complains that the test should have
produced a different outcome in this case, but he does not identify
any specific respect in which the court of appeals erred.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
WILLIAM F. WELD
Assistant Attorney General
J. DOUGLAS WILSON
Attorney
JANUARY 1988
/1/ Petitioner was acquitted at trial on two additional counts of
using a telephone to facilitate a narcotics transaction (Counts 20 and
21). One additional count charging petitioner with carrying a firearm
during a crime of violence (Count 26) was dismissed.
/2/ Petitioner's co-defendants were convicted of numerous offenses.
An appendix to the opinion of the court of appeals sets forth the
convictions of all the appellants in that court (Pet. App. A78-A80).
/3/ The court of appeals followed its own prior decision in United
States v. Abbamonte, 759 F.2d 1065, 1070-1071 (2d Cir. 1985), in
permitting the interlocutory appeal from denial of the motion to
dismiss based on the prior plea agreement (Pet. App. A84). No other
circuit permits such an interlocutory appeal. See John Doe Corp. v.
United States, 714 F.2d 604, 606 (6th Cir. 1983); United States v.
Bird, 709 F.2d 388, 392 (5th Cir. 1983); United States v. Rosario,
677 F.2d 614, 615 n.4 (7th Cir.), cert. denied, 459 U.S. 867 (1982);
United States v. Brizendine, 659 F.2d 215 (D.C. Cir. 1981); United
States v. Eggert, 624 F.2d 973, 975-976 (10th Cir. 1980); United
States v. Solano, 605 F.2d 1141, 1142-1143 (9th Cir. 1979), cert.
denied, 444 U.S. 1020 (1980); see also Heike v. United States, 217
U.S. 423, 430-433 (1910); United States v. MacDonald, 435 U.S. 850,
860 & n.7 (1978); United States v. Alessi, 544 F.2d 1139, 1143-1152
(2d Cir.) (Friendly, J.) (questioning Second Circuit rule allowing
interlocutory appeal), cert. denied, 429 U.S. 960 (1976).
/4/ For this reason, it is entirely immaterial whether the
unwritten plea agreement bound only the United States Attorney for the
Eastern District of New York, or the Southern District as well. There
is accordingly no need for this Court to grant certiorari in this case
in order to decide whether "one U.S. Attorney can file charges against
a defendant following dismissal of the charges pursuant to a plea
agreement, even though it would breach the agreement if the charges
were filed by the U.S. Attorney who made the agreement" (Pet. 28).
/5/ Petitioner also asserts, almost entirely without supporting
citation or reasoning, that the wiretaps themselves "were of
questionable legality, unsupported by probable cause, procedurally
deficient and otherwise objectionable in various respects" (Pet. 30).
Petitioner's only specific complaint is that government agents failed
"to follow the minimization requirements of 18 U.S.C. section 2518(5)"
(Pet. 30). That challenge to the admission of the wiretaps, however,
was lost when petitioner failed to raise it in a timely fashion in the
trial court, waiting until after trial to make the argument for the
first time (see Pet. App. A22). In any event, the challenge is
without merit. The court of appeals considered petitioner's
minimization challenge in light of the factors set forth in Scott v.
United States, 436 U.S. 128, 140-141 (1978), and concluded that the
government surveillance agents had acted reasonably. The court
reasoned that "(t)he instant case involved factors such as the
presence of ambiguous or coded language, a conspiracy thought to be
widespread, and the fact that the phone tapped was located in the
residence of a person thought to be the head of a major drug ring"
(Pet. App. A23). On that basis, the court declined to conclude that
"in monitoring the intercepted conversations, the investigators did
not 'observe reasonable safeguards against excessive intrusion'"
(ibid. (quoting United States v. Terry, 702 F.2d 299, 312 (2d Cir.),
cert. denied, 461 U.S. 931 (1983))). Petitioner has not pointed to
any reason to disturb that or any other aspect of the lower courts'
rulings.